Bridging the divide – integrating the functions of national human rights institutions and national equality bodies in the European Union

Bridging the divide – integrating the functions of national human rights institutions and national equality bodies in the EU

FRA Director Morten Kjaerum held the keynote speech at a conference entitled 'Bridging the divide – integrating the functions of national human rights institutions and national equality bodies in the European Union' at University College London on 15 March 2013.

Ladies and gentlemen,

I am glad to be here to discuss the topic of integrating national human rights institutions and equality bodies in the EU. This subject may appear a purely technical one at first glance, but in fact it touches on the heart of fundamental rights implementation, as I hope my remarks will show.

The economic crisis has led to an increase in poverty, bringing uncertainty to many people’s lives and potentially leading to a greater number of human rights violations. We have also seen how extremist parties have succeeded in boosting their popularity by scapegoating groups such as migrants, Roma, or sexual minorities, to mention but a few. However, just as the dangers of fundamental rights violations are rising, many governments have been cutting justice budgets. This has in some places had a detrimental effect on the overall delivery of justice, while in others we have seen attempts to take political influence on judicial independence.

A recent FRA report on access to justice focused particularly on equality bodies, and stated that while financial austerity might require streamlining, it should and need not be to the detriment of access to justice. So what can be done?

Perhaps it is time for some new steps.

What we sometimes refer to as Europe’s ‘fundamental rights landscape’ is made up of an intricate web of mechanisms aimed at promoting and protecting fundamental rights. These range from local awareness raising or complaints offices, through national courts, equality bodies, NHRIs, ombudsperson institutions, and the various institutions of the EU and the Council of Europe, to the universal monitoring mechanisms of the United Nations. Indeed, we see more and more that non-judicial institutions can potentially improve access to justice, while at the same time reducing the overall cost of the justice system.

The fundamental rights landscape has now become so integrated and sophisticated that it might be better described as a human rights architecture. For example, we have:

the EU’s accession to the European Convention on Human Rights, with all its implications for the relationship between the courts in Strasbourg and Luxembourg and their jurisprudence;

the EU being a party to the Convention on the Rights of Persons with Disabilities (CRPD), which obliges the Union to set up a specific mechanism to monitor the implementation of these rights which will link up with the national level monitoring mechanisms;

increased informal recognition of the importance of NHRIs in the EU system in EP resolutions, and reference to Paris Principles;

the increasingly important role of NHRIs within the UN system;

and finally, the further integration and mergers of NHRIs, ombudsperson institutions and national equality bodies, or other national bodies with a human rights remit.

This increased integration is also perceptible in the structure of the Fundamental Rights Agency. The number of Management Board members from NHRIs, equality bodies, ombudsperson institutions or similar entities at national level has expanded to around a third – and we hope the proportion will continue to grow. In fact, the current chairperson of FRA’s Management Board is one of Finland’s parliamentary ombudsmen. And so with FRA, we are seeing national level protection mechanisms becoming part of the governing structure of a regional human rights body for the first time. This is a next step from the mechanisms established with the OPCAT and UNCRPD. In this regard it should also be mentioned that the CoE is a member of the Management Board and thus ensuring a complementarity between the work of the CoE and FRA.

Apart from this, FRA cooperates closely with NHRIs, as stipulated in its founding regulation, as well as with the European Group of NHRIs and other national bodies with a human rights remit. These include equality bodies and their European network EQUINET, and also ombudsperson institutions. Indeed, later this year we are organising – together with the Council of Europe – a strategic meeting of equality bodies, NHRIs and ombudsperson institutions to define our future collaboration.

Ladies and gentlemen,

Over the last few years, we have seen a trend at national level towards mergers between equality bodies and NHRIs.

I would like here to show you my first slide. The green colour coding indicates in which EU Member States ICC accredited NHRIs additionally play the role of a national equality body, and where the two bodies are distinct institutions (equality bodies in orange). It also shows their possible monitoring role under the Convention on the Rights of Persons with Disabilities (CRPD) and the Optional Protocol to the Convention against Torture (OP-CAT).

There are a number of advantages to be gained from having a larger, more integrated organisation.

A larger institution has the potential to be more influential, and thereby have a greater impact on policy developments at both the local and national level.

Human rights institutions and equality bodies exist to help those whose rights have been violated. But FRA’s surveys on ethnic minorities and LGBT shows that a large number of respondents are not aware of the existence of these institutions. In FRA’s EU-MIDIS survey of more than 23,000 people, 80% of respondents were unable to name any organisation that offered support to victims of discrimination. A single larger institution is almost by default better known, and is often easier and less confusing for victims of fundamental rights abuses to turn to, thus helping them more efficiently towards redress.

Despite the many disparities between different areas of human rights, the issues that emerge from them are often similar to each other. So by covering a number of them, a synergy can be achieved by an integrated human rights body that is able to draw on different forms of expertise, helping it to find new ways forward.

a. When discussing the phenomenon of hate crime, it is often an advantage to address it in relation to more than one group, for example LGBT, people with disabilities and ethnic minorities;
b. In several of our surveys, we have identified discrimination in the health sector as a major issue. And again, in our communication with the health sector, our arguments become more convincing when we can refer to more than one group that is facing discrimination;
c. Classical issues like data protection, access to justice and the prohibition of torture can qualify the discourse and work on areas such as ethnic data collection, the underreporting of hate crime, and the involuntary treatment of people with mental health problems.

And there are many other benefits. I look forward to further discussing this point later on.

The reasoning behind the mergers of NHRIs and equality bodies, whether in France, the Netherlands, Denmark or Britain, is mixed. As the interesting report that I understand will be presented shortly points out, they have certainly been motivated in some cases by economic calculation rather than a search for organisational improvement. The hardest task, though, is not the decision to fuse human rights and equality bodies, but to create structures that make sure the new, combined organisations are:

independent

adequately funded

in a position to combat inequality effectively and at the same time

able to focus on broader human rights issues

Naturally, there is the risk that a larger, integrated body’s mandate can become watered down. That none of the issues are treated in depth and with respect for the specificities of that particular topic. We must not lose sight of the detail. When NHRIs and equality bodies are merged, it is therefore important to make sure we can see the trees for the wood, and not just the other way round.

Another challenge is to ensure that the equality dimension of the new organisation remains intact. Whereas the prohibition against discrimination is an integrated human rights issue, it takes more consideration in a human rights dominated institution to ensure the development of the equality aspect.

Finally, a serious concern is that the discrimination component becomes all-encompassing, to the detriment of other vital areas such as data protection or access to justice. The danger is that the organisation is perceived as only being ‘in the service’ of minorities or niche groups. It is crucial to ensure that fundamental rights are for everyone. Indeed, at FRA we constantly struggle to get this balance right, since – as we all know – it is often among minorities that the most severe human rights problems occur.

Ladies and gentlemen,
As long as the enlarged organisations are aware of and rise to the challenges they face, a positive outcome to such mergers is possible and even probable.

At the EU level, such a metamorphosis took place six years ago. It was then that the European Monitoring Centre on Racism and Xenophobia, which was limited to researching trends in a relatively narrow area, was replaced with the present EU Agency for Fundamental Rights, with a mandate to cover fundamental rights across the board. And I do believe – as the hosts of today’s conference suggest in their report – that the creation of FRA is helping to break down the barriers between the areas traditionally covered by equality bodies on the one hand and NHRIs on the other.

Of course, the situation in individual Member States doesn’t correspond one-to-one with the EU level, or even with the situation in other Member States. But the EU level experience is nevertheless relevant to the mergers now taking place at national level. And I can say that from my point of view, the transformation of the EUMC into the Fundamental Rights Agency has been a very positive one. We are able to engage more easily, with fewer concerns for the boundaries between rights.

Ladies and gentlemen,

Towards the close of my remarks here today, I would like to return to sketch a next step in the design of our fundamental rights architecture. Last year’s Brighton Declaration stressed that establishing truly independent NHRIs in all Member States would do much to reduce the load on the over-burdened European Court of Human Rights in Strasbourg. At the same time, this would ensure a strong culture of respect for fundamental rights and the rule of law.

A consequence of this and the mergers that we see could be to fuse the legal regimes as we know them today. The existence of equality bodies in each Member State is a requirement under EU law; NHRIs, on the other hand, are not obligatory, but the Paris Principles set out the criteria to ensure their independence and effectiveness.

The EU could therefore consider introducing a legal requirement for each Member State to establish an accredited – and hence independent – NHRI (as you are aware, only 10 out of 27 Member States currently have an A-status NHRI). In fact, Data Protection Authorities, also obligatory under EU law, would benefit from stricter minimum standards to ensure independence and efficiency as well – as recent judgments by the European Court of Justice have made clear.

I would like here to show you my second slide, which demonstrates the independence criteria of NHRIs as they stem from the Paris Principles, contrasted with independence requirements under EU law and European case law in relation to equality bodies or Data Protection Authorities.

Let me now conclude:

The EU is still very much a greenhouse of ideas, in which trying and testing is sometimes the best way to reach a solution. Today’s conference will – I hope – provide an important stepping stone on our path to ensuring the accessibility and efficiency of NHRIs and equality bodies in Europe. Through our discussions, I am sure that we will move towards ‘bridging the divide’ between organisations in those places where this has not already happened.

In the end, though, what matters is that any mechanisms that are conceived and consequently established, whether merged or separate, must ultimately serve and benefit the people of Europe.

I look forward to interesting contributions and a lively debate at today’s conference. Thank you for your attention.